England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2015

Mr Justice Knowles :

Introduction

1. On 12 October 2004 Mr Chockalingam, a consultant orthopaedic surgeon, performed a right below knee amputation on the Claimant, Mr Robert Baker. The amputation had become necessary after Mr Baker had, the previous year, jumped or fallen from a building and then suffered an assault whilst recovering from that jump or fall.
2. At the time of the amputation Mr Chockalingam worked for Epsom and St Helier University Hospitals NHS Trust ("the Trust"). In these proceedings Mr Baker has alleged that the amputation was carried out negligently in four respects. These concerned (a) the length of the leg stump (b) cutting back the fibula (c) bevelling or rounding the tibia and (d) soft tissue cover over the bone end of the stump.
3. Liability and causation were ordered to be tried first, and this is the judgment following that trial.

Length of stump

4. The first issue was whether by reason of negligence on the part of Mr Chockalingam the amputation left Mr Baker with too short a stump.
5. The primary reference point taken on behalf of Mr Baker in relation to this allegation was Campbell's Operative Orthopaedics, 19^th edition ("Campbell"). This text expressed the view that "a reasonably satisfactory rule of thumb" for selecting the level of bone section was to allow 2.5 cm of bone length for each 30 cm of body height, and that "usually the most satisfactory level is about 15 cm distal to the medial tibial articular surface."
6. Stump length can matter to the outcome of amputation and prosthetic rehabilitation. Among other things, it is or can, particularly in combination with other factors, be relevant to healing, knee function, muscle strength, gait, ambulation, energy use, walking pace, and the fitting and use of a prosthesis.
7. The typed operation notes prepared by Mr Chockalingam at the time record that the amputation was "about 16 centimetre [sic] from the articular surface of the knee". Having heard Mr Chockalingam as a witness I accept his notes as a reliable record. On examination of Mr Baker, Professor Robert Grimer (a consultant orthopaedic surgeon at the Royal Orthopaedic Hospital, Birmingham, and the independent expert called by the Trust) considered the stump length was 15cm, and, having heard him as a witness, I accept the reliability of that measurement.
8. These findings are sufficient to dispose of this part of Mr Baker's case. However I add the following:

a. It is clear from the extract from Campbell that length is a matter of judgment and approximation, rather than precision. This becomes more obvious still as one examines other practitioner texts. Mr Yell, for Mr Baker, acknowledged in oral closing argument that it was "nebulous" to try to identify precise consequences of the length resulting in the present case.

b. It is important to keep the context in mind. At the time of the operation, length will be marked on the outside skin surface of the leg. The measurement will be made relying on what one can feel below the skin surface. Nothing more sophisticated than a metal ruler might be used.

c. It must be appreciated that later measurements from X-rays and MRI scanners are made in a different environment. Even then I note that at one point the expert witnesses called by both parties were agreed that one of the X-rays indicated a 15 cm measurement.

d. It was also clear to me that differing measurements advanced were at times a function of different choices of start and end point for the measurement. I was quite satisfied that Professor Grimer's choices when reaching the measurement of 15 cm were acceptable.

e. The measurements based on X-rays also differ because there is some obliquity in the cut end of the tibia. Even if the aim is a transverse cut (see Campbell), some obliquity will be inevitable where, as here, it is not suggested that instruments ensuring a precise transverse cut are used. I am entirely satisfied that the effect of the obliquity in the present case is not material for the purpose of answering the question whether the stump in the present case was too short.

9. An attempt was made on Mr Baker's behalf to raise a different allegation, that the shape of the end of the tibia compounded problems with the stump. The statements of case do not include this as a particular of alleged negligence in these proceedings. Even had it been included, it was not substantiated on the facts of this case by the evidence at this trial. I accept Professor Grimer's evidence that the obliquity of the tibial cut was, in the present case, irrelevant.

Cutting back the fibula

10. It was accepted by the Trust that failure to cut back the fibula would be a breach of duty. Mr Baker's case was that it was negligent to cut back the fibula less than 1.2 cm proximal to the tibia. The reference to 1.2 cm is to be found in Campbell in the sentence "Next, section the tibia transversely and section the fibula 1.2 cm proximally".
11. The typed operation notes prepared by Mr Chockalingam at the time record that "the tibia was cut and then the fibular [sic] was cut more proximal". Again I accept that as a reliable record. I am quite satisfied that the fibula was cut back.
12. The notes do not however record by what length the fibula was cut back. The evidence of Mr Chockalingam at trial was, I find, honest, conscientious and reliable. He said he intended to make the fibula about 1.2 cm "sharper", or between 1 and 2 cm. He made clear that he would not routinely measure whether it was 1 or 1.5 cm before cutting. It was possible, he acknowledged, that he cut it shorter than 1.2 cm.
13. The aim of cutting back the fibula is to get the soft tissue over the end of the stump. Over a lifetime of practice in the field Professor Grimer had never measured the length exactly but had aimed for a centimetre. In this he was in the company of other professionals in the field. His opinion is that there is no evidence of what the correct length is for cutting back. I accept that opinion, which is reinforced by the fact that not all professional texts give the 1.2 cm figure that Campbell gives.
14. If (as I have found) the fibula was cut back, Mr Baker's argument was that a later X-ray measurement, of 11 November 2010, showed it to be cut back 0.68 cm. By contrast, Professor Grimer has measured 1 cm from an X-ray of 16 June 2006. But even if 0.68 cm was correct, Professor Grimer's opinion was that that would not indicate negligence. Having regard to the aim of cutting back the fibula, I agree. Mr Vesely, a witness of fact at trial, noted in an examination in 2010 that impingement appeared to be caused at the distal end, but I am not satisfied that impingement is to be attributed to the fibula being cut at 0.68 cm rather than 1.2 cm.

Bevelling the tibia

15. It was accepted by the Trust that it is necessary to round off the ends of the cut bones in order to leave a smooth anterior position. Mr Baker's case was that Mr Chockalingam failed to bevel the anterior aspect of the tibia, leaving a sharp prominence on the stump end. It became clear at trial that, for the purpose of Mr Baker's case, there was not a material difference between the words "round off" and the word "bevel". The important thing was work to avoid a sharp prominence.
16. The typed operation notes prepared by Mr Chockalingam at the time do not refer to rounding off or bevelling. In his evidence at trial Mr Chockalingam however described how he used a gigli saw (his choice of saw, others would have other choices), angling it in order to bevel. He was clear that it was his invariable and routine practice to bevel, describing bevelling as an integral part of the amputation procedure. I accept his evidence, including that he applied his routine practice on this occasion as on others.
17. A great deal of emphasis was laid on Mr Baker's behalf on different degrees of rounding or bevelling said to be shown by different X-rays taken at different times, including after revision surgery in 2010. From the discussion of these X-rays, with witnesses and in submissions, I formed the view that although some appeared to show clearer and more pronounced bevelling than others, and some may have shown more desirable results than others, all achieved the aim or purpose of avoiding a sharp prominence. Nothing persuaded me that any showed work that fell below the standard required so as to warrant an allegation of negligence.

Providing adequate cover

18. An amputation of the nature undergone by Mr Baker involves providing a posterior flap over the bone end of the stump.
19. It was accepted by the Trust that failure to provide adequate soft tissue cover over the end of the stump would amount to a breach of duty. Mr Baker's case was that Mr Chockalingam failed to ensure adequate cover of the calf muscles to make a soft, smooth and comfortable amputation stump.
20. The contemporaneous operation notes prepared by Mr Chockalingam record that "the posterior muscular flap was fashioned to cover the bony edges". Again I accept that as a reliable record.
21. A soft smooth and comfortable stump is relevant to the successful fitting and use of a prosthesis, even though different forms of prosthesis are designed so that weight is taken in different ways. A week after the amputation Dr Subesinghe, associate specialist in rehabilitation medicine, wrote without further comment that the amputation had a posterior flap myoplasty. Two months later he was to note that Mr Baker had successfully rehabilitated with a prosthesis, although he complained of severe phantom pains.
22. After the amputation (and before) Mr Baker was also a patient of Dr Sooriakumaran, a consultant in rehabilitation medicine and clinical director at the Roehampton Rehabilitation Centre. I heard and saw Dr Sooriakumaran give evidence. Had Mr Chockalingam failed to ensure adequate cover of the calf muscles to make a soft, smooth and comfortable amputation stump, I am quite sure that Dr Sooriakumaran would have referred to it when writing to Mr Baker's GP in July 2008. Instead what Dr Sooriakumaran then wrote was that Mr Baker "has been successfully fitted with a prosthesis to achieve full-time outdoor unaided mobility". He went on: "there are no significant problems in his residual limb or problems related to the fitting of his prosthesis".
23. Before the amputation there had been infection in Mr Baker's leg. Infections were experienced after the amputation too, and I think Professor Grimer was correct to regard an infection that followed the amputation and required intravenous antibiotics over a period in hospital, as of some seriousness. On the expert evidence of Professor Grimer, which I accept, infection can lead to retraction. That may well account for some change in the stump end over time.
24. I refer to Mr Baker's evidence below. I do not overlook the description of the condition of the stump at different times given by Mrs Elaine Baker, Mr Baker's mother and a nurse by profession. Mrs Baker gave honest evidence at trial, and her recollection was sincere, but on this fourth and remaining particular of alleged negligence I prefer the evidence to be derived from the specialists and records and to which I refer in the previous four paragraphs. I reject this fourth and remaining particular of alleged negligence.

A wider view, and later events

25. Mr Chockalingam was last involved in Mr Baker's treatment in January 2005. At that time Mr Chockalingam found Mr Baker had returned to work as a decorator.
26. In 2010, more than 5 years after the amputation, Dr Sooriakumaran suggested that the stump was "rather short" (he suggested it measured 13 cm). He noted "more importantly" that the bone ends were rather sharp and inadequately covered with soft tissues. Mrs Baker recalled Dr Sooriakumaran saying that he believed the operation had not been done correctly and that he "had never seen a stump like it". But she was not to know that Dr Sooriakumaran had expressed a different opinion in 2008.
27. Dr Sooriakumaran's suggestions in 2010 appear to be when the allegations the subject of these proceedings began to take shape. For any objective assessment of the relationship (if any) between what Dr Sooriakumaran noted then about bone ends and tissue cover and the amputation, it would have been very important to bear in mind what Dr Sooriakumaran had said in 2008.
28. Also crucial to any assessment of the amputation in the context of legal proceedings, would be independent expert opinion. On Mr Baker's behalf Mr Peter Morrison was asked to provide an opinion. Mr Morrison is a retired consultant orthopaedic surgeon, with a professional address at Bath Clinic. His report dated 3 October 2012 offered views supporting the allegation that the amputation was carried out negligently in the four respects that have been alleged on Mr Baker's behalf.
29. But in writing that report Mr Morrison neither considered nor took account of the contemporaneous typed operation notes from 2004, although they had been provided to him. In cross examination at trial he agreed they were "a critical document" and said "I think in missing this page I admit to carelessness".
30. As it turned out this was but one of a number of points that rendered Mr Morrison of no assistance to the Court as an expert witness. In a letter of 20 July 2014 supplementing his evidence Mr Morrison sought to support a point he was making by embellishing a quotation from the witness statement of a Mr Vesely, a consultant plastic surgeon who gave evidence of fact at the trial. Mr Vesely had said in his witness statement that certain matters "suggest[ed] that the result of amputation surgery was sub optimal". Mr Morrison's embellished quotation omitted the words "result of" and added the words "and unsatisfactory" after "sub optimal". In his report of 3 October 2012 he claimed that Campbell's advice was that the fibula should be cut "at least" 1.2 cm proximal to the tibia; the words "at least" do not appear in Campbell.
31. If I may turn to Mr Baker, it is my duty to record that I found Mr Baker's recollection as a witness impaired. There were many discrepancies in his evidence, and between his evidence and contemporaneous records, especially in relation to his recollection of how he was or what he could manage at what time.
32. I do not intend undue criticism in what I have just said. An amputation is a huge event, and this amputation has not been the success he and others had hoped for, including for his ambitions at work. To the suggestion put to him in cross examination, that the vast majority of trans-tibial amputations on adults achieve a satisfactory outcome, Professor Grimer responded that that was tragically not the case. Others have been more fortunate, and reference was understandably made to some of the wonderful outcomes that can be achieved and were illustrated at the Paralympics in London in 2012.
33. Mr Baker has had the misfortune to suffer from severe depression. Involvement with drugs and alcohol preceded the amputation, but also continued after it. These things will not have helped but are not unrelated to what he has been through. There is anger and frustration in Mr Baker about his circumstances; it seems a blessing that he has a supportive partner so that he is not left alone with these emotions.
34. In his search for answers, Mr Baker's belief, prompted in 2010, that there must have been negligence in 2004 will have been sustained by Mr Morrison's reports. That is a cruel consequence of the poor quality of Mr Morrison's contribution. In another example of his failure to appreciate the role and responsibility he had as an independent expert witness, Mr Morrison, referring to the first duty of a doctor being to his patient, said that he was here to "support" Mr Baker. But rather than help Mr Baker, Mr Morrison has effectively deprived Mr Baker of an independent expert opinion.
35. Mr Morrison has also reduced the range of independent expert opinion that might otherwise have been available to the Court to enable points to be tested and debated more thoroughly still. Fortunately for the Court, the genuinely expert and independent evidence of Professor Grimer has proved sufficient. Professor Grimer's evidence was notable for its frankness on all points, regardless of whether they might be for or against the Trust that called him as an expert witness.
36. There must moreover be real force in the point made by Mr Antelme QC in closing for the Trust that without Mr Morrison's report the case could not have proceeded. I cannot know how it is that the legal team instructed by Mr Baker have continued the case without fully addressing, and causing to be corrected, matters that would have been as obvious to them as to anyone, and in particular the matters referred to at paragraphs 29 and 30 above. Since providing a draft of this judgment to the parties I have been shown a letter dated 13 October 2014 from Mr Baker's solicitors to the solicitors for the Trust and received further representations by letter dated 15 April 2015 from Mr Baker's solicitors. In combination these seek to offer some explanations of the matters to which I have referred, but I am not left satisfied by those explanations.
37. In and since 2010 Mr Baker has undergone stump revision surgery. Phantom pain and neuromas are mentioned repeatedly in medical records over the year or so before that surgery. There is no suggestion that either was a consequence of negligence in the amputation undertaken in 2004. The records show unfortunately that Mr Baker continues even today to experience severe pain after the revision surgery. This is even though the revision surgery has left a stump end that has padding and is soft. In January 2012 Dr Sooriakumaran was to write to a consultant in pain management to the effect that even though there was "fairly adequate muscle padding over the bone ends", and "the new X-ray shows both tibia and fibula as being trimmed back and contoured well", and "the stump presents as adequate", Mr Baker was suffering pain and had "not been able to improve upon his prosthetic mobility" since revision surgery. Last year Mr Vesely wrote on several occasions to Mr Baker's GP with reference to the continued severe pain from neuromas.

Conclusion

38. Having heard and read the evidence at this trial I reach the firm conclusion that, although there is no question that Mr Baker has suffered a great deal since his fall or jump in 2003 and the attack he suffered after that, the amputation in 2004 was not carried out negligently.